Baroness Ashton of Upholland: My Lords, I pay tribute to the work of the Civil Justice Council, with which I have had the pleasure of working closely. I say to the noble and learned Lord that the concept of full cost recovery in one sense misleads us because the taxpayer makes a significant contribution—in 2004–05, nearly £104 million or about 23 per cent of the total costs involved. I repeat what I said at the beginning: we believe that the policy that we are pursuing is appropriate and correct and that it ensures, alongside the issues of remission, that those who need access to justice get it.

Lord Woolf: My Lords, would the Minister be kind enough to tell me whether fees will be put towards the costs of setting up the new Supreme Court? Is that being taken into account in the full cost recovery questions that she has considered? On this occasion, the noble and learned Lord, Lord Ackner, did not do justice to the strength of the concern about the issue, which, I am sure the Minister will agree, is widespread among the judiciary, as he omitted to mention that my successor is equally concerned about the question of costs.

Baroness Ashton of Upholland: My Lords, I am conscious of time. The Government look carefully at how we bring together all of our work in the civil courts. The noble Lord will know that a great deal has gone on in recent times to look at the modernisation of the estates to ensure that we support our judiciary appropriately and that we approach all those seeking justice in the right manner. I will write to the noble Lord and set out some of the detail, as I do not wish to take your Lordships' time at this point.

Lord Tebbit: My Lords, if the Minister thinks that we should not be wasting our time on this issue today, why on Earth did the Government ask us to legislate on it a few years ago?

Immigration Detention Centres

Lord Avebury: My Lords, considering the number of deaths in immigration detention centres given by the noble Lord and the fact that the Chief Inspector of Prisons mentions suicide no fewer than 19 times in her most recent report on a detention centre, Harmondsworth, does the noble Lord not think that it is damaging to the credibility of the whole service when long delays take place in bringing them before coroners' courts? Are any steps included in the announcement made by the Solicitor-General last week concerning the reform of coroners' courts that will speed up the reports on the deaths in immigration detention centres and the consequent reports by the prison ombudsman, which always appear several months later?
	Can the noble Lord also say whether he has read the article in the BMJ Journals last week, which said that it was questionable whether effective psychiatric services could be provided in an environment of prolonged detention such as we have in the centres? Will he say what is being done to reduce the length of detention and thus the likelihood of self-harm and suicide?

Lord Bassam of Brighton: My Lords, the Immigration Service makes thorough use of translation services. It has access to a wide range of those services, and it takes expert advice. I am not aware that a lack of understanding of the sort to which the noble Viscount has referred has been a particular problem or a particular problem in any of these cases.

Lord McKenzie of Luton: My Lords, I beg to move the Motion standing in the name of my noble friend Lord Sainsbury on the Order Paper.
	Moved, That it be an instruction to the Grand Committee to which the Work and Families Bill has been committed that they consider the bill in the following order:
	Clauses 1 to 11
	Schedule 1
	Clauses 12 to 15
	Schedule 2
	Clauses 16 to 20.—(Lord McKenzie of Luton.)

Baroness Barker: My Lords, it is some considerable time since Members of this House considered this matter in Grand Committee. The intervening time has been used extremely wisely—the noble Earl, Lord Howe, and myself have had the opportunity to meet a number of the professional bodies such as the NHS Litigation Authority, ACHCEW and others. They have generously spent time explaining to us a great deal of the background to the Bill—I believe that the Minister knows that we have had that information. I think he would agree that that process will turn out to be beneficial to the whole House as we move on to the next stage of the Bill.
	At the outset of our proceedings, I apologise for the absence of my colleague and noble friend Lady Neuberger, who noble Lords will know has done a great deal of work on this matter. My noble friend is abroad fulfilling a commitment she had undertaken before she became a Member of your Lordships' House. It is a matter of considerable regret to her and that she is not with us, and to me, given her knowledge and expertise on this subject—as will become evident throughout the afternoon.
	It is correct at the beginning of our discussions to go back to where we left off at the end of Grand Committee proceedings. Throughout Grand Committee, we returned time and again to our central concern about the Bill: the lack of independence in the process. I put on record my thanks to the noble Lord, Lord Warner, for two lengthy letters that he sent to me and to the noble Earl, Lord Howe, in which he addressed in great detail a number of concerns that we had raised. However, the central point about which we were at odds with the Government—the independence of the redress scheme—was not addressed entirely satisfactorily in those letters. That is why we have tabled a number of amendments that we will discuss in some detail this afternoon, which set out an alternative way in which the redress scheme could be made to work with a greater degree of independence, which we believe is crucial to the integrity of the scheme and the esteem in which patients will hold it.
	Those arguments are principally captured in Amendments Nos. 22, 23, 26 and 42. In essence, as I and the noble Earl, Lord Howe, have set out in detail, we take on board some of the criticisms that the Government have made of our earlier proposals and ensure that there is a two-stage process for people seeking redress under the scheme. The first part of that is an independent finding of fact. We will set out later how that should be done. Once a report that covers that finding of fact is made available, someone who wants to take the matter further has a number of options.
	The reason for moving the new clause now is to set out those different options—the different means of redress that would be available to anyone who had received a report of a finding of fact that there had been an adverse treatment of them by the NHS. To spell it out, those different means of redress could be the NHS Litigation Authority; a dispute resolution service; the right to go to court, which they retain; or a redress scheme as defined in the Bill.
	In proposing the new clause, I make it absolutely clear that although we have reservations—indeed, we disagree—about the extent to which the Government propose in the Bill that the NHS Litigation Authority be involved in the scheme, we do not suggest that it should not be. There is a role for it to play, as there is for a resolve-type scheme for someone, once they have had that finding of fact. So the new clause sets out the beginning of the argument that we shall make for the rest of this afternoon. I beg to move.

Lord Warner: My Lords, during Committee a number of noble Lords raised concerns that the scheme was incapable of adapting to the increasing diversity of NHS healthcare provision. In particular, concerns were raised that the scheme should be able to cover services falling within the grey areas between primary and secondary care, especially as the NHS moves towards greater provision of what have traditionally been secondary care services in primary care environments. Since that debate, the Government have published a White Paper addressing some of the items on the health agenda.
	I have taken on board noble Lords' concerns that the scheme should be able to adapt to increasing diversity of service provision and the move towards providing hospital services in the community setting. This group of amendments enables the scheme to list, in secondary legislation, services over and above hospital services that will be covered by the scheme. This will allow flexibility to bring those services falling in the grey areas between primary and secondary care within the scope of the scheme. It will also allow flexibility to adapt the scope of the scheme in the future, in light of changing methods of service provision and delivery.
	We consider it appropriate to set out in secondary legislation the details of which services, over and above hospital services, should be designated as qualifying services for the purposes of the scheme. The intention is that the power will be used to cover, for example, services of a kind usually provided in a hospital, which happen not to be so provided, such as pathology laboratory services. These can be provided in hospital or free-standing units. Another example would be services that are currently normally provided in a hospital, but which may in future be more frequently provided outside the hospital setting; an example would be palliative care. A third example would be those services that fall in the grey areas between primary and secondary care. This might describe, for example, ambulance services, which increasingly take on a wider role in the services they provide.
	It is appropriate that these services be set out in secondary legislation, due to the changing nature of service provision in the NHS and the potential for further services to be moved out of the hospital setting in the future, which is certainly the aspiration reflected in the White Paper. Flexibility is desired to ensure that the scope of the NHS redress scheme can be more easily adjusted in the light of changes to NHS service provision. A supplementary memorandum was submitted to the Delegated Powers and Regulatory Reform Committee on 19 January, outlining the new powers proposed in these amendments. The committee has considered the government amendments and has not identified any matters that it wishes to draw to the attention of the House. The report is available to all Members in the Printed Paper Office.
	I remain convinced that primary care should remain excluded from the scope of the scheme; that is why we object to Amendment Nos. 5 to 7. To put our objections on the record once more, it may be helpful if I deal with that now, by explaining why we did not include it in this amendment. As discussed in Committee, extending the Bill to include primary care wholesale would be problematic for a number of reasons. Primary care professionals cover their liability through private insurance arrangements, rather than NHS indemnity arrangements. Further consultation would be needed to develop a scheme that would, effectively in primary care, have the confidence of primary care professionals and insurers. The redress scheme has been costed only for NHS clinical work covered by the Clinical Negligence Scheme for Trusts. Following Committee, the cost of including primary care within the Bill has been modelled by departmental economists. Their modelling suggests that it would be up to an extra £56 million per year.
	Amendment No. 4 therefore provides for primary medical services, primary dental services and general ophthalmic services to be specifically excluded from the new powers in Clause 1. That avoids the problems involved in extending the scheme to cover primary care wholesale. Because "primary medical services" and "primary dental services" are not defined terms for the purposes of the National Health Service Act 1977, Amendment No. 4 provides for the possibility of prescribing in regulations particular services that are or are not primary medical services or primary dental services for the purposes of Clause 1. The intention is to ensure a consistent approach when specifying services to be covered by the scheme. Where a certain service is generally provided in a hospital, but may on occasion be provided in an alternative setting—for example, a primary care facility—it is intended that this power could be used to enable the service to be covered by the scheme regardless of where it is provided. It remains our intention that the scheme will be reviewed three years after implementation with a view to considering whether to expand its scope to cover primary care, which would require further primary legislation.
	Because "hospital" appears only in Clause 1, Amendment No. 9 takes the definition from Clause 18 and places it in Clause 1. It has no policy implications. Amendment No. 51 is a purely technical amendment, which prevents duplication of the interpretation by removing the reference to "hospital" from Clause 18. I beg to move.

Lord Warner: My Lords, I take that as an invitation to have another go. As I said in my letter and in my opening remarks, I acknowledged that we could not be absolutely certain precisely which and at what time services would be taken out of a normal hospital setting and made available in a community setting. A good example of this is emergency care practitioners in ambulance services. Different ambulance services at the moment have different ranges of emergency care practitioners doing different duties. The location from which forms of healthcare are delivered is changing quite rapidly, not just in this country but in all countries. In the White Paper, for example, there are six projects in particular specialties—urology is one, ENT is another—where we will look for new clinical pathways for people. We will work with the professions to gauge the safety and feasibility of taking more of the work in these specialties traditionally done in a hospital into a community setting.
	Given that we know the direction of travel, we think it sensible in this Bill to take provisions to put in secondary legislation, and to communicate with patients which services are to be covered by the scheme. I tried to explain clearly—both in Committee and today—why we did not extend this scheme to primary care. At the moment this scheme is intended to cover hospital-type care only. Primary care would be excluded from the scope of the scheme. Costing of the scheme was made on that basis. I gave in my speech the extra costing of extending this Bill to primary care, even if we could speedily do it. On the estimates available to me, they are of the order of £56 million. However, we have the complexity caused by the fact that GPs and other primary care practitioners have a totally different professional indemnity system from the NHS hospital indemnity system. We cannot simply translate that system into the terms of this Bill. To do that, it would need to be looked at again and there would need to be wide consultations with the primary care interests.
	In the mean time, we do not want to hold up the Bill until all those consultations in the primary care field have been completed. We do not know where they will take us, so in our view it is better to get on with the redress scheme being provided by the Bill, but to make it flexible enough to deal with a range of services that we know are likely to end up being provided outside the hospital setting in the coming years.

Earl Howe: moved Amendment No. *12:
	Page 2, line 26, at end insert "and a report on action being taken to reduce the risk of similar errors being repeated"

Lord Warner: My Lords, in Committee, as the noble Earl, Lord Howe, has said, a number of noble Lords raised concerns that lessons learnt under the scheme were not to be made public. The redress scheme has a number of aims, among them the desire to create a cultural shift within the NHS towards a greater willingness to learn from mistakes and to improve the quality of service offered to patients in the future. Throughout consideration of this Bill, there has been no difference between any of us regarding that purpose.
	Clause 10(2)(h) enables the scheme to impose a new duty on scheme members, to charge,
	"a specified person with responsibility for overseeing the carrying out of",
	the scheme by the scheme member and,
	"advising the member about lessons to be learnt from cases involving the member that are dealt with under the scheme".
	However, we have listened to the concerns of the noble Lords about demonstrating a more public commitment to ensuring that lessons have been learnt and acted upon. Amendment No. 36 enables the scheme to require scheme members
	"to prepare and publish an annual report about . . . cases",
	involving the member that are dealt with under the scheme,
	"and the lessons to be learnt from them".
	The annual report is intended to demonstrate to patients within a scheme member's locality that lessons are being learnt from the redress scheme and that the scheme is being used effectively to improve local delivery of services. Guidance on best practice will set out how best to ensure patient and clinician anonymity when preparing and publishing these reports. To support the close links between the NHS complaints procedure and the redress scheme, it will be open to scheme members to combine the annual report on the redress scheme with their annual report on complaints.
	Amendment No. 37 would provide that the annual report must also include details of the nature and incorporation of the lessons learnt. I believe that the drafting of Amendment No. 36 makes it clear that the nature of the lessons learnt is to be covered. This aspect of Amendment No. 37 is unnecessary. Similarly, it is not necessary to stipulate that the report must detail how lessons learnt have been incorporated. This is implied by the duty.
	This amendment would introduce too much detail into the Bill, as it seeks to cover areas best dealt with as good practice guidance. Provision is already in place to ensure that learning from mistakes is taken forward and incorporated. The Bill already provides, at Clause 10(2)(h), for the appointment of a person with responsibility for ensuring learning from mistakes within the organisation. This person's responsibility will be to ensure that lessons learnt are incorporated and that a culture of learning is established within the organisation concerned. I support Amendment No. 36 and suggest that Amendment No. 37 be withdrawn.

Earl Howe: My Lords, in moving Amendment No. 15, I shall speak also to Amendment No. 17. The Minister has told us that the intention for the NHS redress scheme is that it should not compensate people at a lesser level than they would have been compensated if they had pursued their remedies through civil litigation. If the Government really mean that, it is illogical for them to reserve the statutory right to set upper limits of financial compensation. The amount of compensation offered should be assessed on the basis of the actual loss, plus damage sustained, as well as pain and suffering, just as it would be in a case that was litigated. That principle applies not only to the overall amount of compensation but to any individual head of claim.
	I fully acknowledge that the scheme is intended to address those claims that fall into the lower end of the value range. The Minister, in his letter of 18 January, helpfully explained that it is in cases where the award of damages is relatively low—£20,000 or below—that legal costs are disproportionately high. I would not wish to argue that point in the slightest. The rationale for setting an upper limit is, according to the Government, that it will enable a swift response to be given to the more straightforward and lower value cases.
	My answer to that is that there is a difference between trying to set an upper ceiling on the size of claims intended to be dealt with by the scheme and the desirability of sticking rigidly to that upper ceiling if, during the course of an investigation, it becomes apparent that the claim is worth more than the amount of the ceiling chosen. If a claim is found to be worth slightly more than £20,000 it would seem ridiculous to miss the opportunity to resolve that claim for that rather bureaucratic reason. If that were to happen, there is only one realistic option for the patient, which is to incur the expense and the additional stress of going to court. That is in no one's interests, and it argues for some flexibility to be built into the nominal upper limit.
	In his letter, the Minister expressed the view that there would not be any advantage to the NHSLA knowingly offering less compensation than would be received through the courts because, following legal advice, the offer would be rejected and renegotiated. If the offer were at or near £20,000, and the patient's legal advice was that it ought to be worth more, the patient might nevertheless be persuaded to take a pragmatic view and accept the offer, because not to do so would incur untold additional anxiety and delay. The existence of a strictly enforced upper ceiling on claims points up very graphically the trade-off at play in the scheme between ease of operation and natural justice. I would like to persuade the Minister—although I know that I will not—that in this sense as in a number of others natural justice is a regrettable casualty of this scheme and that we should therefore do all we can to minimise its loss. One way to do that, in my respectful view, would be to abandon the idea of a strict upper limit on total settlements and on individual heads of claim. At the margin, fixed financial ceilings will distort decision making and deny patients the full extent of the redress that they would otherwise have received. I beg to move.

Baroness Barker: My Lords, I thank the Minister for the clarity he has added, which is now on the record. I did not find all his answers compelling and I do not believe that there is yet sufficient clarity about the power of individuals to trigger this scheme.
	I take entirely his optimistic view that scheme members, principally trusts, will be only too ready and willing actively to trigger things on behalf of people whom they feel come within it. What if they do not? That is the still-unanswered question. What is the power of an individual and how will he know that he has the power to trigger this scheme? I did not find the Minister's answer that there may be other circumstances, or indeed that there may be circumstances when it was not appropriate to commence this scheme, compelling for not setting out the simple fact that this scheme is available for individuals to trigger. When this comes to work in practice, just like in complaints procedures now, there has to be an understanding of where it fits within the range of different ways of addressing the question of redress.
	I welcome what light the Minister has shared on the matter, but suggest that there is more yet to come. At this stage, I beg leave to withdraw the amendment.

Baroness Barker: I thank the Minister for that response. However, having listened carefully to him, his response still points up a somewhat odd omission from the whole scheme. He talked to us at considerable length about new openness within the NHS—a willingness to listen and to learn from mistakes. However, the duty of candour has not been taken on—I noted what the Minister said. Not to include a simple duty to inform a patient that mistakes have been made seems to me a fundamental missing link in the proposals. I will take the matter away and consider it. I beg leave to withdraw the amendment.

Earl Howe: My Lords, I shall speak also to the other amendments in this group. The aim of the Bill is to provide us with a model for a system that will enable aggrieved patients to seek redress—in all senses of that word—if they feel they have received negligent treatment in an NHS hospital. If there is one glaring fault in that model, to my mind, it is this. Let us imagine that a patient has been treated in hospital and something has gone wrong with the treatment. He makes an application under the scheme. The body tasked with investigating the facts of what went wrong is the hospital itself. The scheme authority, tasked with overseeing the process of investigation, assessing the degree of fault and setting the quantum of compensation, is the NHS Litigation Authority—a body very experienced in that area of work, but one which, when all is said and done, is part of the NHS.
	The NHS is therefore being asked to act as judge, jury and assessor of compensation for its own misdeeds. Is that a system that is inherently fair to the patient? I do not think so. Is it a system in which patients are likely to have confidence? I suggest not. From the patient's point of view, the redress scheme may offer a cheap and speedy means of settlement, but it is hardly objective or independent. We must address that failing.
	Putting myself into the shoes of an aggrieved patient, I would want one thing above all—some assurance that the initial process of fact-finding by the hospital was not a purely in-house exercise. There needs to be some independent oversight of the investigation by someone both sufficiently knowledgeable and with the necessary degree of standing in the eyes of the public.
	In Grand Committee, it was suggested that the Healthcare Commission, not the NHSLA, should act as the scheme authority and, in so doing, provide the required element of independence. The Minister told us that there were two things wrong with that idea. One was that the Healthcare Commission has a conflict of interests, bearing in mind its current role as the point of reference for second-tier complaints in the NHS. The other was that it would damage local accountability. In his subsequent letter, for which I thank him, he added that it would also prove an inexpensive way forward. I am not sure that I fully accept the first two reasons but, in fairness to the Minister, it would be wrong not to take on board the third one.
	Since Grand Committee, I have given this issue a lot of thought. It seems to me that there is a solution which would meet the requirements that I have set out without falling foul of the Minister's objections in relation to the Healthcare Commission—a panel of patient-redress investigators approved, but not appointed, by the Healthcare Commission, whose job would be to oversee the fact-finding part of the redress process.
	It is perfectly possible to imagine one individual serving several hospital trusts in this capacity. There would be no need for there to be one per trust. The trusts concerned would be responsible for investigating the facts of what went wrong, but the person actually signing off the report would be the redress investigator—a person who, albeit paid by the trust, would nevertheless not be seen as part of either the medical staff or the trust management. The Healthcare Commission's prior approval, or kite marking, of that person would confer a special independent status on him or her.
	There is a model for what I propose, and it is a familiar one—that of the coroner. The coroner is a Crown servant whose job is to investigate the facts of a death whose circumstances are not straightforward. If the death takes place in a hospital, the hospital will collate the factual details of what went wrong, but it is up to the coroner to arrive at a verdict of how, when and where the deceased came by his death. He does not and must not pronounce on any issue relating to fault or legal liability. He cannot grant remedies or reward damages.
	By means of a process that is inquisitorial, the coroner inquires into the facts of what happened, hears the evidence, summarises that evidence, and finally arrives at a verdict which comprises a finding of fact about the circumstances of the death. Where he believes that action should be taken to prevent the recurrence of similar fatalities, he may report accordingly.
	There is a key feature of the coroner's inquest, which I have just emphasised—the separation of fact-finding from fault-finding. In Grand Committee, I proposed that the Bill omit any reference whatever to fault-finding and stick solely to the key process of fact-finding. I still believe that that would be the best model to follow. It is not necessary or appropriate for the Bill to do more. However, I am realistic enough to know that I am not going to achieve that outcome so, failing that, the key must be to ensure that the fact-finding part of the redress scheme is not muddied by the separate process of determining fault and assessing a quantum of compensation—the role that the Government want the NHSLA to undertake.
	That is why I propose in the amendments that the NHSLA should have no jurisdiction over the fact-finding part of the redress scheme. It should stand back. The jurisdiction should instead lie with the patient redress investigator. At the end of the factual investigation, the patient would receive from the hospital and the investigator an explanation of what went wrong and, where appropriate, an apology. After that, so long as the patient wishes it, but not of course otherwise, the NHSLA would take over as the scheme authority. It would determine liability, if any, and make an offer of financial compensation to the patient. The patient could then take that offer or leave it as he chose.
	I genuinely believe that this variant of the government scheme will give us a better result. The main thing it will achieve is the necessary element of independence and thus consumer confidence. But there are, I suggest, other benefits. It avoids what in Grand Committee I rather rudely called the functional incoherence of the Government scheme. The model provided by the coroner's court tells us that you need an impartial investigation of the facts before you even begin to decide whether there is a legal case to answer. Therefore, you should not have, overseeing a fact-finding investigation where full disclosure should apply, a body whose job is also to perform the in-house role of assessing fault and offering compensation under the rules of legal privilege. You should not have overseeing fact-finding a body that would suffer from the clearest possible conflict of interests as both a part of the internal machinery of the NHS and an authority supposedly tasked with being fair and impartial to patients.
	One of the main aims of the NHSLA at present is to defend the NHS against unwarranted claims and to minimise costs that otherwise could be devoted to patient care. It does that with considerable success. It is, I am afraid, beyond me how we are supposed to believe that it can continue to perform that function in a manner that is at the same time independent. I believe that the alternative model that I have outlined overcomes all those difficulties. I beg to move.

Lord Warner: My Lords, in this set of amendments we come to what is probably the major remaining area of contention between us in this Bill. I continue to have some sympathy, believe it or not, with some of the arguments put forward from the Benches opposite. I am particularly glad to learn of the Liberal Democrats' wish to join us in our conversion to avoiding unnecessary bureaucracy in the NHS; we are making progress. I would like to set out some of our objections to this particular set of amendments, although, if noble Lords will bear with me, I may have some comfort to offer towards the end of my remarks.
	First, there is the question of whether the scheme should be limited, at the beginning, to a fact-finding investigation. The noble Earl, Lord Howe, has plugged away at this with great persistence from the beginning. We consider it an integral and important part of the scheme that the investigation of an incident is combined, where appropriate, with the resolution of the case through an offer of redress. We do not really accept the kind of division that the noble Earl has in mind. Under the Bill as it stands, the scheme presents an alternative to civil proceedings for those claims that fall within it. The NHS redress scheme is intended to provide a mechanism for swift resolution of low monetary value claims in tort, without the need to go to court.
	Limiting the scheme, in the way proposed, to a fact-finding investigation at the outset, with some degree of separation from the rest of the scheme, would prevent the scheme from offering a real alternative to court action. It would create a partial scheme, rather than a complete scheme. This is not what patients want, as it would not allow for the provision of true redress in all cases. Of course redress involves investigation and explanation—we do not disagree with that—but in some cases it also necessarily involves financial compensation. As we have envisaged the scheme, it delivers clear benefits for patients, providing a real alternative to litigation in cases of low monetary value that fall within it. It addresses some of the problems of delay and risk around legal costs, which can arise in taking a case through the courts. That is where we start from—a different position from that of the noble Earl, Lord Howe, although I respect the arguments that he has put forward.
	I turn now, more particularly, to Amendment No. 42. This appears to envisage the appointment of a single patient redress investigator to conduct an investigation in a case under the scheme. There are a number of reasons why this would not be appropriate. A single investigator for each case would have to perform multiple and, it could be said, conflicting roles. A person suitably skilled in investigation techniques does not necessarily possess the skills to determine how to prevent errors from occurring in the future. This approach could prevent the effective use of a mix of skills within a scheme member's organisation. It might, for example, be more appropriate for certain aspects of the investigation, such as determining the clinical facts, to be handled by clinicians, with some aspects, such as patient liaison, to be handled by PALS staff and other aspects to be determined by specialists, such as jointly instructed medical experts. I give those as examples of the kinds of skills that may be necessary to get to the bottom of a particular incident.
	Scheme members, through a combination of staff working, for example, in the areas of complaints, PALS and risk management, may already possess a group of staff with combined experience in all those areas. Importantly, these staff are an integral part of the organisation and are therefore better able to link these processes together and to contribute to the learning process for that organisation, which we all agree, I think, is important for the benefit of the NHS.
	To be cost-effective, it is important that the investigation of cases under the scheme makes full use of the skills and expertise already in place on the ground. Departmental economists have estimated that independent investigation of all cases may cost as much as an extra £41 million per year. I am very happy to supply noble Lords with the basis of that calculation, because I would expect a degree of scepticism about my producing that figure from the top of my head. It would be preferable, and more cost- effective, for an appointed person to take an overview of the investigation, utilising expertise and resources already available within the organisation. With this more flexible approach, the investigator could co-ordinate different elements of the investigation undertaken by a range of people, rather than the scheme member having to employ one person, and a separate person, with all the necessary skills.
	We are also opposed to Amendment No. 42 because we do not believe that it would be appropriate for the Healthcare Commission to maintain and publish a list of approved investigators and to have responsibility for overseeing the carrying out of their functions. We have consulted the Healthcare Commission on this potential role. It does not believe that the validation and accreditation of NHS investigators falls within its remit. It is already proposed that consideration of the effectiveness of the operation of the NHS redress scheme, including investigations carried out under the scheme, will be included as part of the Healthcare Commission's annual review of the provision of healthcare by and for NHS bodies. I do not believe that a separate review of the carrying out of the functions of a redress scheme investigator would be appropriate, as it would lead to duplication of effort by a body which already has a wide range of functions and a heavy workload.
	Crucially, Amendment No. 42 raises significant unanswered questions about how the proposal would work in practice. It is not clear from the amendment by whom the patient redress investigator would be appointed, by whom he would be employed, or to whom he would be accountable. Is it envisaged, for example, that the scheme member will employ the investigator and pay his salary, but that the employee will be answerable to the Healthcare Commission? The wording could be interpreted in that way. Usual employment practice is for an employee to be accountable to his employer. Or is the intention that the investigators are independent of the scheme member? Are the investigators to be appointed by the Secretary of State? I suspect that that is not in the noble Earl's mind. As I have said, if the investigators are intended to be independent of the scheme member, there are clear cost implications. I repeat: the cost of independent investigation of all cases under the scheme has been modelled by Department of Health economists, who estimate it to be up to an extra £41 million per year.
	We further believe that Amendment No. 42 is inappropriate because it duplicates powers already established in the Bill. The amendment sets out that secondary legislation may make provision with regard to how the investigation should be carried out. But we already have the power in Clause 6(2)(a) to enable the scheme to make provision about the investigation of cases under the scheme. It is intended that the scheme will provide as to how investigations are to be carried out in secondary legislation, following consultation with stakeholders.
	That is the bad news. I shall now turn to more positives responses to what I think is the underlying thinking behind this group of amendments. We sympathise with the idea that there should be a specified person overseeing—I use the word "overseeing" deliberately—the investigation of each case under the scheme. That person should have responsibility for co-ordinating an investigation report to be submitted to the scheme authority, which may inform the decision on eligibility for the scheme. I am therefore willing to take this away and table an amendment at Third Reading to enable the Secretary of State to require scheme members to charge a specified person with responsibility for overseeing the investigation of cases under the scheme. The amendment would provide that secondary legislation may set out the prescribed qualifications and/or experience that this specified person would need.
	This person would be given the task of overseeing the carrying out of investigations under the scheme, ensuring that appropriate information is collected and provided to the scheme authority, in order to inform the decision on both liability and quantum. The person would be employed by the scheme member and the responsibilities might be conferred on an already existing member of staff. The person would have to act reasonably when carrying out their responsibilities, or a complaint of maladministration could be made under the redress scheme complaints procedure. Should complaints of maladministration be referred to the Health Service Commissioner, there would be an independent overview by the commissioner. The Health Service Commissioner could investigate complaints about maladministration in connection with the investigation of cases under the scheme, and report on her findings.
	To promote learning from mistakes and to ensure that effective links between cases under the scheme and improvements to clinical governance procedures are made, I believe that it would be preferable to take this amendment forward, building on the requirements set out in clause 10(2)(h). Clause 10(2)(h) already allows the scheme to impose a duty on scheme members, requiring them to charge a specified person with responsibility for overseeing the carrying out of specified functions under the Act and advising the member about lessons to be learnt from cases that are dealt with under the scheme. I suggest that this person will be better placed to undertake the function of overseeing investigations under the scheme, as it is envisaged that the person will be part of the management team of the scheme member.
	By combining the functions, this person will be better able to make links between cases under the scheme, learning from mistakes and ensuring that action is taken to prevent recurrence. They will understand the scheme member's procedures and be better placed to determine the appropriate action to be taken and how to monitor it. It is important that they should have the status and influence to ensure that action is taken in the future, which is one of the key aspects of the scheme and of what patients who have suffered adverse incidents want for the future.
	Furthermore, if scheme members are required to charge a specified person with responsibility for overseeing the carrying out of investigations, the role of that person will be subject to an independent overview by the Health Service Commissioner should a complaint of maladministration be referred to her. I believe that this will provide a sufficient check on the performance of the role and provide a good deal of reassurance to noble Lords, given the concerns that they have expressed. I hope that willingness to take forward an amendment on those lines will be convincing to the Benches opposite.

Earl Howe: My Lords, a serious anomaly thrown up by the Government's redress scheme is the confusion that it causes on disclosure and privileged legal information. The NHSLA will be tasked not only with the gathering of factual case evidence about what was done, by whom and why—under the Government's proposals, at any rate—but also with the logically quite distinct exercise of considering whether the facts of the case give rise to a legal liability in tort and, if so, whether an offer of financial compensation is appropriate. It would be wrong to call the second half of the process judicial or even quasi judicial. It is an in-house consideration of the NHS's liability resulting, sometimes, in an offer. As such it is barely susceptible to judicial review. Ordinarily, the substance of in-house deliberations of this kind would be treated as privileged information, as would the legal advice underpinning it. Normally any offer of settlement under the redress scheme would be without prejudice.
	When an offer of redress is accepted, clearly the matter is dealt with and the file is closed. However, when it is rejected, what will be the position of the NHSLA? Will it try to claim privilege under the redress procedures in respect of any subsequent litigation? If offers under the scheme are to be made without prejudice, that suggests that the NHSLA would want to preserve its position on liability. Indeed, there is little point in the offer being without prejudice if the proceedings leading up to it are not privileged.
	Yet, at the same time, we are told by the Government that they wish the redress process to be as open as possible. In his letter of 20 December, the Minister said that the Government are committed to freedom of information and frank disclosure, but almost in the same breath, he adds that there will also be an element of nondisclosure in relation to documents covered by legal professional privilege. That is a very confused message to give out.
	The Government have got themselves into this confusion by conflating, unnecessarily in my view, the two logically distinct halves of the redress process: fact finding, where open disclosure should operate under the rules of natural justice, and fault finding, where the rules of legal professional privilege set in. Earlier I referred to the functional incoherence of the Government's scheme and this is one rather obvious aspect of it. It leads to irrational results. If you separate functions in a logical way, that removes conflicts of interest.
	I support this amendment, not least because it forces the Government's hand. If they want the redress process to be open and to mean what they say about freedom of information, this amendment is the way to achieve it.

Baroness Royall of Blaisdon: My Lords, I must first apologise for any confusion that has been caused by a minor drafting error in the list of government amendments that was sent out to your Lordships with my noble friend's letter of 18 January 2006. As noble Lords may have noticed, the version of Amendment No. 30 that they received differs slightly in one respect from the amendment as published. I regret that Amendment No. 30 as sent out contained a technical error, in that it would have resulted in the inclusion of an extra word, "of", in Clause 8(1)(b). The error was noticed and the correct amendment was published, but after the letter with the attached list of amendments had been sent out. I assure your Lordships that there is no difference in policy terms, or effect, with regard to Clause 8(1)(b).
	The published statement of policy on the NHS redress scheme makes clear our intention that legal advice on any offer under the scheme and the terms of any settlement agreement is to be given without charge. In Committee, noble Lords expressed concern that Clause 8(1) gives the Secretary of State discretion over the circumstances in which legal advice is to be provided without charge under the redress scheme. I gave an undertaking to noble Lords to reconsider the drafting.
	If the redress scheme is to offer patients a credible alternative to litigation, it has to have the full trust of patients going through the scheme. Amendments Nos. 29, 32 and 34 strengthen the Bill by including a new subsection (1A) in Clause 8 which provides that the scheme must—not may—make such provision as the Secretary of State considers will ensure that all persons making a claim under the scheme will have access to free legal advice in relation to offers and settlement agreements.
	The Secretary of State will be under an obligation to provide for free legal advice in respect of offers and settlement agreements in all cases. I hope that this will provide reassurance that the scheme will not require the waiver of rights by those harmed during NHS care, unless those people are fully aware of the consequences and consent to that waiver. In Committee, concerns were also raised over when a jointly instructed independent medical expert may be involved in the process.
	When considering Clause 8(1), I also took the opportunity to review the drafting of Clause 8(1)(b), which enables the provision of services,
	"designed to help in reaching an agreement to settle".
	We would not wish there to be any restriction on the stage at which such services may be provided, and hence this restriction has been removed by Amendment No 31. Amendment No. 30, by inserting the words,
	"in connection with proceedings under the scheme"
	enables the scheme to provide for appropriate services at any stage of the scheme. This will enable the scheme to provide for services which are intended to help determine questions of liability, such as, where appropriate, the services of a jointly instructed medical expert to assist with questions about whether a case falls within the scope of the scheme. It will also enable the scheme to provide for services intended to help determine the appropriate level of compensation to be offered, such as, where appropriate, the services of a jointly instructed medical expert to assist with questions about the extent of an injury, and future consequences to the patient as a result of that injury.
	Amendment No. 31 makes clear that the Secretary of State may make provision for a range of services in connection with proceedings under the scheme, including in particular the commissioning of services from medical experts. We intend to work closely with stakeholders when drafting the secondary legislation to determine the circumstances in which it may be appropriate to commission an independent medical expert.
	Amendment No. 26 would insert into Clause 6 a power for the scheme to make provision for access to an agreed independent "medico-legal expert". I consider this to be inappropriate. First, it is not clear what exactly is meant by the term, although the explanation given by the noble Baroness, Lady Barker, has thrown some light on that. If it is envisaged that patients will have access to a medical expert with legal qualifications, there are clear cost and resource implications. Such expertise may not be appropriate for the type of more straightforward, lower-value cases that will be dealt with under the scheme.
	Secondly, we have existing powers to provide both expert medical and legal advice. Clause 8 specifically provides for both legal advice and access to other services, including the services of medical experts. It is envisaged that the services of jointly instructed independent medical experts may be engaged to assist in determining questions of eligibility for the scheme and the appropriate level of compensation to be offered.
	As regards legal advice, it is intended that the achievement of quality mark status will be used as the standard for the legal advice given at the point at which an offer is made under the scheme, and that the system of giving advice would be similar to current practice for litigated cases—that is, the work may be undertaken by or will be supervised by the panel solicitor. It is intended that these measures will ensure that patients have access to an appropriate level of specialised advice.
	The government amendments to Clause 8(1)(b) provide a broad power to allow for the provision of services throughout the process. That is a satisfactory solution that will allow appropriate services to be used in appropriate cases. In many cases, settlement will be reached without the need for other services. We would expect the patient to be consulted throughout.
	Importantly, Amendment No. 26 would also require the scheme authority and the patient to be bound by the findings of the independent medico-legal expert. It seems that the amendment seeks to enable this expert to determine liability. This confuses the investigation process and the decision-making process. There will be cases where an independent expert medical opinion is necessary. The scheme makes provision for that. The opinion of the expert will, of course, be highly persuasive. However, he or she is not there to pre-empt the decision of the scheme authority, but to add to the knowledge of how the incident arose. The amendment would take the assessment of eligibility under the scheme out of the hands of the scheme authority, so I think that this amendment raises many questions about who these medico-legal experts—who it is actually envisaged will be determining eligibility—would be.
	The amendment would seek to incorporate into the redress scheme a form of independent dispute resolution, which would be inappropriate and have huge cost implications. I firmly believe the scheme authority has to be responsible for making decisions about eligibility under the scheme. The scheme authority will make decisions according to the law of tort and after considering appropriate expert evidence, if necessary. The NHSLA, as the proposed scheme authority, is best placed to make these decisions. That is its area of expertise. The redress scheme is intended to be an out-of-court settlement scheme. If an offer is not made under the scheme or is rejected, the patient retains his right to seek redress though the courts. The scheme is not intended to determine rights and bind patients.
	There is a further safeguard. Clause 14 introduces a complaints mechanism for cases of alleged maladministration. Ultimately, these cases may go to the Health Service Commissioner. Any decision made by the scheme authority on eligibility or quantum which does not take into account the facts, or unreasonably overrides an expert medical opinion, may be expected to fall within the scope of this power. This safeguard is sufficient to ensure that the evidence provided by independent medical experts is appropriately taken into account when decisions are made under the scheme.
	Amendment No. 33 would provide that legal advice on the offer and settlement under the redress scheme would specifically be specialist medico-legal advice. This amendment provides no flexibility. It suggests that specialist medico-legal advice will be necessary in all cases falling under the redress scheme. I am opposed to this, as I do not believe that it would be cost-effective for independent medico-legal advice, or indeed independent medical expert advice, to be obtained with regard to every case under the scheme—for example, in some cases it will be clear that there is liability without the need for an independent medical expert opinion. This scheme is for cases of lower monetary value. In some cases the patient will simply require legal advice on the offer and settlement agreement. The amendment restricts flexibility and has the potential to lead to additional unnecessary costs. I therefore oppose both Amendments Nos. 26 and 33.

Lord Warner: My Lords, in Committee, it was suggested that the drafting of Clause 7 was difficult to understand. Parliamentary counsel was invited to reconsider the drafting and a revised wording has been provided in the amendment. There is no policy change behind the amendment. It is simply intended to clarify the policy in the Bill. I hope that new subsection (1) now makes it clear that the clause requires the scheme to provide for the period of time during which a case is being dealt with under the scheme to be disregarded for the purposes of calculating whether any time limit for bringing court proceedings has expired. For limitation purposes, time ceases to run while a case is being considered under the redress scheme.
	We accept that, when the redress scheme has been triggered, the processes will take time to complete. It is right, therefore, that patients' rights to pursue court proceedings are maintained while their case is being considered under the scheme. There should be no reduction in the time left available to them to bring court proceedings just because their case has been considered under the NHS redress scheme. Patients must not be put under pressure to complete proceedings under the scheme because of the existing time limits for bringing court proceedings.
	Noble Lords may recall that Section 11 of the Limitation Act 1980 provides that court proceedings founded in tort for damages in respect of personal injury cannot generally be brought more than three years from the date on which the cause of action accrued—or, if later, the date on which the person became aware of the cause of action.
	That provision will ensure that a patient is not prejudiced by or prevented from litigating as a result of waiting for the result of an investigation under the redress scheme—for example, where he or she is dissatisfied with an offer made under the scheme and therefore subsequently wants to bring court proceedings. It effectively stops the clock regarding any time limit for bringing court proceedings in respect of the same incident for as long as the case is being considered under the redress scheme.
	It was also suggested that a specific amendment to the Limitation Act 1980 is required to ensure that the limitation period does not run while there are proceedings under the scheme. That has been considered, but we are satisfied that no such amendment is required. It is not necessary for the modification of the relevant time limits in the Limitation Act to appear in the Limitation Act itself. Although Part II of that Act contains a number of provisions extending or excluding the ordinary time limits, it is unnecessary for all such extensions and exclusions to appear there.
	Clause 7 now clearly enables the scheme to affect the operation of the Limitation Act, enabling it to modify the limitation period in relation to liabilities that are the subject of proceedings under the redress scheme. New subsection 1(A) makes explicit that the scheme can amend the Limitation Act, as there is now express reference to the Act. Under existing subsection (2), which remains unaltered by the amendment, the scheme may define when a case is considered to be the subject of proceedings under the scheme, so that it is absolutely clear when the clock stops running for the purposes of calculating the period of time to be disregarded. I beg to move.

Earl Howe: My Lords, the noble Baroness's amendment has its heart in the right place, because she has identified what many will see as a drawback in the Government's model for delivering redress. It is a "take it or leave it" process. If you do not like the offer you get, what can you do? The Government's answer is that if you want to take things further you can go to court. Many people will not be able to afford to do that, or, for other perfectly valid reasons, will not want to—hence the idea of an appeal mechanism.
	For all that, I cannot support this amendment. The whole point of the Government's redress scheme is that it is not a judicial process at all. It amounts to being an in-house consideration of the NHS's own liability. That consideration will result sometimes in an offer of financial compensation. Offers are to be made without prejudice, with only partial provision for disclosure of factual information. The rules of legal professional privilege will operate. These are not the features of a process open to appeal; you cannot appeal against an offer or a deliberative process. The amendment refers to a decision as though there were something judicial about what the NHSLA will be tasked with doing. With due respect to the noble Baroness and the BMA, an offer is not the same thing as a decision. It is something you either accept or reject. Therefore, it is inappropriate to seek an appeal mechanism in this particular context.
	There is perhaps one other point to add—something that perhaps should not go unsaid before these Report proceedings are concluded. The thought behind the noble Baroness's amendment is entirely understandable because, right the way through our debates on the Bill, the Government have very consciously wished to convey the impression that what they are offering is something novel. It is not. The work that the NHSLA will be tasked with doing is work that it has been doing for years. The NHSLA is already in the business of making offers of financial compensation to aggrieved patients and settling claims out of court. A very high proportion of claims made against the NHS are settled in this way. It is a familiar and well tried process. So we should not allow ourselves to be seduced by the idea that the Bill provides a genuinely novel alternative to litigation. Stripped down to its essentials, it is a repackaging exercise: the same system with a few knobs on. That is another reason why the absence of an appeal mechanism should not astonish us unduly.

Baroness Royall of Blaisdon: My Lords, I am grateful to the noble Earl for his understanding and for his wish for further clarification of the powers being vested in the National Assembly for Wales. I trust that I can give him the necessary reassurance.
	The Government of Wales Bill provides for the conversion of "framework powers", as mentioned by the noble Earl, into enhanced legislative competence, which in this case would enable the Assembly to legislate by measure in relation to NHS redress in Wales. The conversion process is scheduled to take place around the time other provisions in the Government of Wales Bill, which replace the current Assembly with a separate executive and legislature, are implemented after the next Assembly elections in May 2007. To seek a framework power now is entirely consistent with the policy set out in the White Paper for a Parliamentary Bill such as this one to make broader provision in respect of Wales. I emphasise again that these powers are being conferred on a democratically elected body with its own rigorous scrutiny procedures.
	Paragraph 3.12 of the White Paper states that,
	"legislation made by the Assembly is subject to scrutiny by Assembly Members using procedures at least as rigorous as those available to Members of Parliament".
	If the Assembly were to use its Clause 17 regulation-making powers prior to the clause being converted into enhanced legislative competence of the new Assembly around May 2007, the Assembly's existing procedures for dealing with subordinate legislation, involving consultation, scrutiny and debate and the opportunity to amend proposals, will apply.
	It is also important to recognise that a considerable degree of discussion of the policies concerned takes place in its subject committees before the draft regulations themselves are scrutinised by the Assembly. Once the framework power is converted into enhanced legislative competence of the new Assembly as the legislature, the Assembly will be able to exercise the converted enhanced legislative powers relating to NHS redress by way of Assembly measures. Those broad legislative powers will rest with the Assembly. Only the Assembly will be able to make measures and these, too, will be subject to rigorous scrutiny.
	The Government of Wales Bill makes provision for the procedure that must be followed in order to enact an Assembly measure. This follows the equivalent provision under the Scotland Act.
	I hope that I have been able to reassure the noble Earl that the framework power is legitimate, proportionate and founded soundly on democratic principles of scrutiny and debate by a democratically elected Assembly and that he will therefore feel able to withdraw his amendment.

Lord Bassam of Brighton: My Lords, the Prevention of Terrorism Act 2005 was introduced last year in recognition of our need to be able to tackle the threat posed to national security by individuals that we could neither prosecute nor deport. The Government's response to the Law Lords ruling on the Anti-terrorism, Crime and Security Act Part IV powers was the Prevention of Terrorism Act, which introduced control orders. Control orders enable tailored obligations to be placed on an individual to protect the public from the risk of terrorism. The Prevention of Terrorism Act came into force on 11 March 2005.
	The threat posed to the life of the nation by terrorism and the consequences of terrorism is a subject that has necessarily occupied this House on too many occasions. The tragic events of last July brought home to everyone that this is a very real and continuing threat. The UK Government must continue to tackle terrorism. Control orders have a vital role to play alongside other existing powers and the new measures contained in the Terrorism Bill, which was debated earlier in the other place.
	My right honourable friend the Home Secretary set out in his Statement to the other place on 2 February why he thought the powers were necessary and why we were seeking to renew these powers for a further 12 months. The report of the noble Lord, Lord Carlile of Berriew, on the operation of the 2005 Act was laid on the same day.
	It is in accordance with Section 13 of the 2005 Act that today's renewal debate is taking place. Section 13 provides that the powers contained in the 2005 Act relating to control orders will automatically lapse after one year unless renewed by order subject to the affirmative resolution in both Houses of Parliament.
	When the Prevention of Terrorism Act was going through Parliament we gave an undertaking that we would provide the opportunity for legislative change. My right honourable friend the Home Secretary outlined in his Statement on 2 February how we would take this forward and his proposals for the development of a draft Bill to be published in the first half of 2007 for pre-legislative scrutiny.
	We would then seek to introduce the legislation later that year. This would provide the opportunity to make legislative changes to the 2005 Act—if that was thought necessary—once the processes in the Act had been through a full cycle and we had the benefit of a further report from the noble Lord, Lord Carlile of Berriew, on the operation of the Act.
	I turn to the specific need for the powers. We face a continuing threat from terrorists and terrorism-related activity. Prosecution is and will always remain the Government's preferred course of action in dealing with individuals suspected of terrorism and priority will continue to be given to prosecution. But prosecution is not always possible for a variety of reasons. There may be insufficient admissible evidence, an overriding need to protect sensitive sources and techniques, or other reasons why a prosecution may not necessarily be in the public interest. Deportation is also an option for foreign nationals since removal can provide alternative means of disrupting their activity and reducing the threat to national security. But again this is not always possible, although we have made a considerable amount of progress in agreeing memoranda of understanding with a number of countries which we believe will provide a means by which individuals can safely be returned to their countries of origin.
	The Terrorism Bill currently before Parliament will introduce some new offences, including the offence of acts preparatory to terrorism. But there will remain a comparatively small number of cases where we are unable to prosecute, but where individuals pose a very real terrorist threat. In these circumstances, it is vital that the Government and the law enforcement agencies are able to act to reduce the risk that such individuals pose. The report of the noble Lord, Lord Carlile of Berriew, provided support for this view. In paragraph 61 it states:
	"As a last resort (only), in my view the control order system as operated currently in its non-derogating form is a justifiable and proportional safety valve for the proper protection of civil society".
	Once again I want to take the opportunity to thank the noble Lord, who conducted his analysis with great care and attention. I should also like to thank the Joint Committee on Human Rights for its informative report and detailed reflection on the legislation and its operation. These contributions will be invaluable in informing the House in our consideration of these important issues.
	Sections 1 to 9 of the Prevention of Terrorism Act 2005 provide for the making of control orders. These are preventive orders that enable one or more obligations to be placed upon individuals that are designed to prevent, restrict or disrupt their involvement in terrorism-related activity. They can be applied to any individual, whether a United Kingdom or foreign national, where the Secretary of State has reasonable grounds for suspecting that the individual is or has been involved in terrorist activity and he considers it necessary for the purposes of protecting members of the public from the risk of terrorism. The obligations can be tailored to tackle particular forms of terrorist activity on a case-by-case basis. Any breach of the obligations in a control order without reasonable excuse is a criminal offence punishable with a prison sentence of up to five years and/or an unlimited fine.
	The Act makes provision for two types of order—derogating control orders and non-derogating control orders. The distinction between the two is that a derogation will be required if the obligations either individually or in total amounted to a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights. We have not sought to make any derogating control orders. For non-derogating control orders the Secretary of State has to apply to the court for permission to make an order. There is provision in the Act, in the case of urgency, for the Secretary of State to make a control order. This must then be referred immediately to the court. The court must then begin its consideration of the case within seven days. Once a control order is made, an automatic review process is triggered. This judicial review of the Secretary of State's decision provides independent judicial scrutiny.
	Control orders have a maximum duration of 12 months. They can then be renewed by the Secretary of State, but this provides for a separate right of appeal. An individual may also apply to the court for the order to be revoked or an obligation to be modified where there is a change in circumstances, again with separate rights of appeal. The Act provides full judicial oversight and rights of appeal. Additionally, there are other reviewing and reporting requirements, such as the independent review in the form of the annual report of the noble Lord, Lord Carlile of Berriew, while the Secretary of State has to make three-monthly reports to Parliament on the exercise of his powers.
	There is a delicate balance to strike between safeguarding society and safeguarding the rights of the individual. As I have outlined, a number of safeguards are set out in the Act, and the renewal debates today both here and in the other place are a further requirement of the Act. Renewal requires an affirmative resolution in both Houses. These debates give honourable Members and noble Lords an opportunity to consider what is said in the report of the noble Lord, Lord Carlile of Berriew, and the merits of control orders more generally.
	The noble Lord has made some important recommendations in relation to improving the operation of the control order regime, including developing a procedure to monitor closely the necessity and proportionality of control order obligations and for the Government to provide fuller information as to why a prosecution cannot be brought instead of a control order. My right honourable friend the Home Secretary has welcomed the noble Lord's recommendations and explained that he will need to consider these once he has consulted the Intelligence Services Commissioner and the Director General of the Security Service, as required by the Act.
	In relation to the first of the two main recommendations, we agree with the noble Lord, Lord Carlile. While a number of internal mechanisms are already in place to review control orders, we accept that there is scope for an additional review of the obligations throughout a control order's life cycle, and we are discussing with stakeholders how best to achieve this. On the second recommendation, for the police to provide more information on why a prosecution is not possible, I think we all acknowledge the soundness of the principle here and we undertake to examine further with stakeholders how this might work in practice.
	I turn to the specific working of the draft order before the House. Without the order the power to make control orders will lapse at midnight on 10 March 2006. The effect of the order is to continue it in force until 10 March 2007. It requires approval by both Houses of Parliament. It is the Government's strong belief that control orders are an essential element of the range of measures that are necessary to address the continuing threat posed by terrorism. This belief is supported by the noble Lord, Lord Carlile of Berriew, in his report to the House on the first nine months of the operation of the prevention of terrorism legislation. In his report the noble Lord pointed out:
	"The nature of the activities of which I have seen information is sufficiently alarming for me to re-emphasise, as I have in other reports, the real and present danger of shocking terrorism acts involving suicide bombings . . . further suicide bombings in the United Kingdom must be expected and the target unpredictable".
	Those are chilling words and it is crucial that we never underestimate the threat we now face. Control orders are one of a number of options that the Government are employing to counter the very real threat of terrorism. They have an essential role to play both in countering the threat and contributing to a more hostile environment for terrorists to operate in.
	The Government's role, first and foremost, must be to protect the general public. Control orders are helping to achieve this while maintaining the necessary safeguards to protect individual rights. It is with this very much in mind that I commend the order to the House. I beg to move.
	Moved, That the order laid before the House on 2 February be approved [17th Report from the Joint Committee and 23rd Report from the Merits Committee].—(Lord Bassam of Brighton.)

Lord Lloyd of Berwick: My Lords, I support the amendment of the noble Lord. Most of those who were present during that long night of 10 to 11 March 2005 will remember in particular the speech of the noble Baroness, Lady Hayman. She made the point that the annual renewal of the 2005 Act by order was not the way forward. She had two reasons: first, the importance of the subject matter of the Bill, affecting as it does the liberty of the subject; but, secondly, the inordinate haste with which that Bill was pushed through Parliament.
	The noble Baroness therefore proposed a sunset clause, to take effect on 31 March 2006, the consequence of which would have been that the Act would lapse on that day unless renewed by primary legislation. Her amendment to that effect was carried by 205 to 100—a huge majority. However, the Prime Minister had indicated that he was against a sunset clause, so when the Lords amendment went to the Commons it was rejected. However, at 11.12 pm, this House voted again to have a sunset clause, this time by 192 to 107. This House did so again at 5.43 am, by 164 to 96, and yet again at 12.56 pm the next day, by 194 to 123. A more convincing expression of the view of this House would be hard to imagine.
	The House then adjourned until 6.30 pm on 11 March. In the mean time, the parties were able to reach an agreement. That agreement was announced by the Lord Chancellor. It is set out in the Hansard for 10 March—part 2—at column 1058. The agreement was that this House would have an opportunity to review the 2005 Act in the spring of this year, after the noble Lord, Lord Carlile, had published his report on the operation of the Act. The whole object was that we in this House should have an opportunity of reviewing the 2005 Act and of amending it, if necessary, before being asked to renew it. That, one might think, was reasonable enough.
	That was not all, however. In July 2005, the Home Secretary repeated his undertaking that he would return to control orders in the spring of this year. Yet, on 2 February, the day the noble Lord, Lord Carlile, published his report, the Home Secretary announced that the 2005 Act would not be reviewed in spring after all, but would instead be renewed by order on 15 February, which is of course today. The review promised for the spring of this year would not now take place until the end of 2007. That Statement by the Home Secretary was one of great importance, but for some reason—which I have not been able to find out—it was never repeated in this House, which is why it came as quite a surprise to many of us. I suggest to the House that the course that is now proposed is a clear departure from what was agreed on 11 March 2005. It was on the basis of that agreement that this House let the 2005 Bill go through. It is also a clear departure from the undertaking given by the Home Secretary in July that he would return to control orders in the spring.
	The Home Secretary gave three reasons why we are not to have the opportunity of reviewing the 2005 Act now. The first, he said, was that it would be premature, because the validity of control orders had not yet been tested in the courts. That presumably means that we must wait until the first case reaches the House of Lords. In any event, that difficulty must have been appreciated when the Home Secretary gave his undertaking in 2005. Secondly, he said that we must wait until the noble Lord, Lord Carlile, has completed his review of the current Terrorism Bill and produced a new definition of "terrorism". What the relevance of that would be is entirely beyond me. Thirdly, he said that the current legislation is in a mess and needs to be consolidated. I entirely agree with that, and the reason is not far to see.
	None of those reasons explains why a short Bill could not have been introduced so that the 2005 Act could be renewed by primary legislation instead of by order and so that we could have had the opportunity promised to review the Act now. That was something which the Home Secretary did at least consider, according to his Statement, yet he rejected it for the three reasons which I have given. It is all the more important that we should have had that opportunity in view of two things: first, the facts now revealed by the Carlile report; and, secondly, the view of the Joint Committee on Human Rights, described by the noble Lord, Lord Bassam, in a marvellous understatement, as "informative". I describe it as damning, because damning is what it is.
	The fact is that nine men are currently being detained pending deportation with no idea when a memorandum of agreement may be reached with the countries to which they are supposed to be deported. Of those nine, four have been granted bail on very severe restrictions, amounting in all probability to deprivation of liberty. Another nine are subject to control orders, described by the noble Lord, Lord Carlile, as extremely restrictive. The Joint Committee on Human Rights correctly pointed out that, whereas a single restriction may not amount to a deprivation of liberty, a number of restrictions cumulatively may well do so. That is the view which it has formed about those currently subject to control orders. I will read one short paragraph—paragraph 38—of its 12th report, which states:
	"In our view, those obligations are so restrictive of liberty as to amount to a deprivation of liberty for the purposes of Article 5(1) ECHR. It therefore seems to us that the control order legislation itself is such as to make it likely that the power to impose non-derogating control orders will be exercised in a way which is incompatible with Article 5(1) in the absence of a derogation from that Article".
	That was exactly my view when the Bill was going through this House and that is why I have always opposed control orders. But it is now too late to ask for a review of this legislation; we can do nothing but renew it. Meanwhile, the nine who are currently detained must presumably wait until the winter of 2007 for the legislation under which they are currently being detained—which may well be contrary to the Human Rights Act—to be properly reviewed by Parliament. In the interval, their only hope is to appeal. I regard that as profoundly unsatisfactory.

Baroness Stern: My Lords, I wish to make just a few remarks arising out of the report of the Joint Committee on Human Rights of which I am a member and which, thanks to the valiant efforts of the staff, was agreed late on Monday evening and published on Tuesday morning. I am glad that it is proving useful to so many noble Lords. I hope that eventually noble Lords will read the full report. I will confine myself to one aspect that particularly concerns me—the actual operation of the control orders and their effects on the people being controlled and on their family members.
	It appears from the report by the noble Lord, Lord Carlile, that most of the 18 people so far made subject to these orders have been put under what he has called "extremely restrictive obligations", which fall,
	"not very far short of house arrest",
	and,
	"involve deprivation of much of normal life".
	I remind noble Lords that the control order requirements include an 18-hour curfew; electronic tagging that is monitored twice a day by a private tagging company; a ban on the use of the garden; limitation on visitors and meetings to persons approved in advance by the Home Office; allowing the police to enter the house at any time to search and remove any item and to allow the installation of monitoring equipment; prohibitions on phones, mobile phones and Internet access; and restrictions on movement to within a defined area.
	The committee received evidence that has not been seen by the noble Lord, Lord Carlile, which bears out his conclusions about the severity of the control order regime and its problematic nature. We received evidence from a group of lawyers and civil liberty campaigners, CAMPACC, who are volunteers who visit people who are subject to control orders; although once they do visit such people it appears that they become classified as,
	"a known associate of a terror suspect".
	It said in evidence to our committee that it is almost impossible for people without a family home—that is, single people—to be released on a control order because no landlord will have them—I am sure that we find that understandable—and very few friends if any will take them in because the consequences for the friend are so extreme.
	There is probably more information available about the control order regime to which we do not have access. Here I am making a point about the visit of a delegation from the Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. In July 2005, they sent a delegation which included a lawyer and a psychiatrist on a five-day visit to the UK. According to its press release, the delegation,
	"examined the practical operation of the Prevention of Terrorism Act 2005 and met various persons served with control orders".
	In November 2005, the same delegation came here again for six days. In addition to looking at the treatment and conditions of detention of certain people recently detained under the Immigration Act 1971, it also interviewed two persons under house arrest and met persons served with control orders under the Act that we are discussing today.
	In view of the importance of this evening's discussions, it seems strange that the Government have not informed Parliament whether the Committee for the Prevention of Torture made any immediate observations at the end of its visits in July and November 2005 in pursuance of Article 8, paragraph 5 of the European Convention for the Prevention of Torture. Noble Lords will know that the Committee for the Prevention of Torture makes immediate observations when it considers that a member state needs to take urgent action to prevent inhuman and degrading treatment, so it should be noted that we are being asked to make a decision on the renewal of this order in the absence of information that could be very relevant to the view that the House may take.
	Finally, the Joint Committee on Human Rights made some comments on the implications of these orders for the human rights of family members of those who are controlled. I shall summarise them briefly. The wives and children of controlled persons— I understand they are all men—are also subject to interference in their right to respect for private family life and home because of frequent access to their premises by outsiders without notice. That can include affront to religious and cultural sensitivities, particularly for the women in the household. In one part of our evidence we read that the women always went to bed fully clothed in case there was a visit from a monitor late in the evening. They are subject to restrictions on their use of telephones and access to the Internet; they have difficulty maintaining family connections and friendships because their houses are under surveillance; and all visitors have to be approved beforehand. They are living under constant anxiety that their family member may break the terms of the order by mistake or be rearrested.
	I appreciate the point made by the noble Baroness, Lady Kennedy, that it is important for us to express our views on this and I hope that we shall be able to vote on the amendment.

Lord Kingsland: My Lords, at the climax of the great debates of March 2005, to which the noble and learned Lord, Lord Lloyd of Berwick, referred, the Home Secretary undertook to revisit control orders in primary legislation at the earliest possible moment after the publication of the report of the noble Lord, Lord Carlile. That has not happened. In a debate in another place, on 2 February this year, the Secretary of State explained why. Essentially, he said that he would meet his undertaking, not in 2006, but most probably in 2007. Meanwhile, he wanted another 12 months' grace. What has happened is precisely what so many of your Lordships feared in March last year.
	The noble Baroness, Lady Hayman, has extremely generously—rather unfairly to herself—said that she was not tough enough. That could equally be said of ourselves. One stage later than the noble Baroness, we took the view that the offer made by the Home Secretary in another place in all the circumstances ought, on balance, to be accepted. We were wrong. We ought to have been even tougher than we were. That is the situation that we face. We must decide whether or not to renew the order for another 12 months.
	The right honourable gentleman the Home Secretary was at his most emollient and constructive in the debate in another place on 2 February. He prayed in aid three reasons for asking for another year of grace. The first was that there are now, as I understand it—I know that the noble and learned Lord, Lord Lloyd of Berwick, is extremely pleased about this—constructive negotiations going on between the Government and the Opposition and, indeed, between the Government and its own security advisers about a way through the difficulties the Government see in allowing intercept evidence in court proceedings. The right honourable gentleman the Home Secretary referred to that in specific terms:
	"the Government are undertaking to find, if possible, a legal model that would provide the necessary safeguards to allow intercept material to be used as evidence".—[Official Report, Commons, 2/2/06; col. 479.]
	We on these Benches welcome that statement; but we also understand that, as the model is not yet in existence, the Government will need extra time to put it in place.
	A second reason why the right honourable gentleman wished to delay the matter was that the noble Lord, Lord Carlile of Berriew, was undertaking an intense study into the definition of "terrorism". The absence of a definition has to some degree blighted the progress of the Terrorism Bill in your Lordships' House. We therefore recognise that the Government will need time to absorb the conclusions of the noble Lord, Lord Carlile of Berriew, before coming forward with a definition worthy of inclusion in legislation.
	The right honourable gentleman also suggested a third reason and claimed support from the noble Lord, Lord Carlile of Berriew, in advancing it. It was that none of the current control order litigation had reached the point of judgment in the courts and that consequently we should wait and see what the courts said before reconsidering the position of control orders in our legislation.
	I beg to differ with the right honourable gentleman that that is a valid reason for waiting. Suppose that the courts find against the Government, especially if the basis for those findings discloses one or more breaches of the European Convention of Human Rights. In those circumstances, will the Government not be placed in exactly the same situation as in December 2004, following the Belmarsh decision? If your Lordships agree with that, it adds great weight to the observation of the noble Lord, Lord Thomas of Gresford, that the Government will find themselves in the most ignominious position. They are not leading the nation in finding the right solution but following the courts—institutions about which they have repeatedly expressed deep reservation. What an irony if that were to occur. Whatever the merits of the right honourable gentleman's observations about intercept evidence and the definition of terrorism, in my respectful submission, the argument that we should wait for the courts is quite unacceptable.
	Many of your Lordships have referred to the report of the Joint Committee on Human Rights. I pay tribute, as did the noble Baroness, Lady Stern, to all the work done to ensure that that report was before your Lordships' House tonight. It is worth quoting from the concluding paragraph of that report, which flowed from a detailed analysis of the compatibility of control orders with the European convention:
	"In light of the concerns expressed in this Report, we seriously question renewal without a proper opportunity for a parliamentary debate on whether a derogation from Articles 5(1), 5(4) and 6(1) ECHR is justifiable, that is, whether the extraordinary measures in the Prevention of Terrorism Act 2005, which the Government seeks to continue in force, are strictly required by the exigencies of the situation. It would be premature for us to express a view on that question. We merely conclude at this stage that we cannot endorse a renewal without a derogation and believe that Parliament should therefore be given an opportunity to debate and decide that question".
	We have not had an opportunity to debate the report in detail. We have only seen it for a day and a half, and tonight the Government are asking us to take a decision about the whole system of control orders.
	It is worth noting, however, that the Joint Committee's concerns went not just to one article in the convention but to a large number: to Article 5(1) and Article 5(4), which concern the access to courts and the adequacy of court procedure to ensure that those subject to control orders are given proper rights; to the fairness of trials under Article 6(1); as the noble Baroness, Lady Stern, explained, to the convention's provisions on family life; and finally, because only one of the 18 people subject to control orders is a British national, to whether or not there was also a breach of Article 14. That is indeed a rich jurisprudential tapestry; and your Lordships have not had the opportunity to consider it in any detail.
	However, I wish to draw your Lordships' attention in particular to one point in the Joint Committee's report. In the final sentence of paragraph 38, the Joint Committee states:
	"In our view, those obligations"—
	a reference to the obligations in the control orders—
	"are so restrictive of liberty as to amount to a deprivation of liberty for the purposes of Article 5(1) ECHR. It therefore seems to us that the control order legislation itself is such as to make it likely that the power to impose non-derogating control orders will be exercised in a way which is incompatible with Article 5(1) in the absence of a derogation from that Article".
	The noble Lord, Lord Carlile of Berriew, had something to say about that matter at paragraph 43 of his report, to which the noble Baroness, Lady Stern, referred. He is referring to the nine of the 18 who are still subject to control orders:
	"The obligations include an eighteen hour curfew, limitation of visitors and meetings to those persons approved by the Home Office, submission to searches, no cellular communications or internet, and a geographical restriction on travel. They fall not very far short of house arrest, and certainly inhibit normal life considerably".
	It is true that the noble Lord, Lord Carlile, said previously in relation to the decisions taken by the Secretary of State at, confusingly, paragraph 38 of his own report:
	"I would have reached the same decision as the Secretary of State in each case in which a control order has been made".
	The noble Lord was making that observation, of course, in the context of the particular law that had to be addressed by the Home Secretary and therefore not in the additional context of the human rights convention.
	Only nine of the 18 people initially subject to control orders are now subject to control orders. A further nine have been removed from the control order regime and incarcerated pending deportation. They are divided into two classes. One of the nine is a Jordanian and, if deported, will go back to Jordan. The Government have, as I understand it, signed a memorandum of understanding with Jordan. I have not seen the document, but I suppose that the Jordanian Government undertake not to breach articles 2 and 3 of the European convention in relation to the treatment of that individual. No doubt the matter will be litigated in the courts, and we shall wait with interest to see what conclusion the courts reach about the viability of memorandums of understanding when signed.
	However, the other eight come from countries with which we have not yet concluded memorandums of understanding. Therefore, it follows, as night follows day, that it will be impossible to deport those individuals in the absence of such memorandums. Those people are incarcerated with no idea about how long they are going to be there. Is that compatible not only with the European Convention on Human Rights but with the sense of fairness that runs through our common law traditions? We have to ask ourselves those questions.
	I have one final observation, your Lordships will be relieved to hear. I go back to the point made so elegantly by the noble Baroness, Lady Hayman, in the opening stages of her speech. Control orders, while necessary in certain circumstances, are measures of last resort. What we all want to see is prosecution, not control orders. Every opportunity must be taken to ensure that we prosecute those individuals.
	A great battle took place during the debates of March 2005 over how the Government could guarantee that, in every control order case, the individual concerned was not capable of being subject to a prosecution in our criminal courts. We on these Benches pressed for an undertaking from the Director of Public Prosecutions that prosecution was impossible before the control order regime should become activated. The Government resisted that, in the end successfully, and substituted for our view that it should be the DPP who took the final decision the view that it should be the chief constable of the area concerned that should take the final decision.
	The noble Lord, Lord Carlile of Berriew, had something to say about this as well. At paragraph 58 of the report he said:
	"I have seen letters from chief officers of police in relation to each controlee certifying that there was no realistic prospect of prosecution. Little is given by way of reasons. Whilst I have no evidential basis for doubting the genuine nature of the section 8 exercise, in my view the letters provided by chief officers should give clear reasons for the conclusion that there is not evidence available that could realistically be used for the purposes of a terrorism prosecution".
	It is plain that the system put into operation by the Government in respect of chief constables and chief police officers is not working properly. I particularly ask the Minister to address that point in his remarks because it goes right to the core of the control order system. The control order system must be limited to cases where prosecution is simply not possible. Once it starts to encroach in the wrong direction over that line, we will, indeed, enter an extremely dangerous world. I look forward to the Minister's reply.

Lord Bassam of Brighton: My Lords, first, I thanks all noble Lords who have made contributions to an intriguing and difficult debate. One has to accept it is a very difficult debate, but I start from the point—I am grateful that there now seems to be almost universal recognition of this—that we face a continuing threat from terrorism and terrorism-related activity. There must always, I would argue, be an acceptance that it is the role of government to tackle terrorism, to tackle it head on and to deal with the issues that flow from it. That is where we start from; and that is where, I think, we can have a point of agreement.
	It is also the Government's strong belief—a belief that has found support in your Lordships' House—that control orders have an essential role to play in countering the threat of terrorism and in contributing to a more hostile environment for terrorists to operate in. That view is shared by the independent reviewer of the legislation, the noble Lord, Lord Carlile of Berriew. He has been much quoted but is sadly absent from the Chamber this evening. I made it clear in my opening remarks that we would closely study the practical recommendations that the noble Lord, Lord Carlile, made in his report.
	That is where we start from. From that easy start, we begin to diverge in our analyses of the current situation and the import of where we are at the moment and how we have got there. I listened carefully to what the noble Lord, Lord Thomas of Gresford, had to say. His comments, particularly those rehearsing the history of where we were, I listened to more carefully than most. He, the noble and learned Lord, Lord Lloyd of Berwick, the noble Lord, Lord Kingsland, and others were critical of the fact that we will not have the opportunity, as they see it, to revisit the issue of control orders—rather than, as we are at the moment, looking at the renewal—and go back to first principles in the debate. The suggestion was powerfully made that in some way the Government had reneged on their commitment. I certainly accept that the situation has changed since we had those important, long fought-over debates last year when we considered the Prevention of Terrorism Act 2005.
	The noble Lord, Lord Thomas of Gresford, made the point that the undertaking the Government made has, in a sense, been renegotiated. He was right to make that point. Events, as my noble friend Lady Hayman made clear, have somewhat overtaken us. For that reason, we have had to review the situation. As has been said in your Lordships' House, the Home Secretary in his Statement of 2 February drew attention to the fact that we now have a report produced by the noble Lord, Lord Carlile, as an independent reviewer of the Act on its first nine months of operation. At that stage we did not believe that legislative changes were required. We did not believe that a purpose would be served by introducing further legislation at this stage. We preferred to have a different timetable, but a timetable that meant that we would consider a draft Bill in the spring of next year, and that Bill would be the subject of some pre-legislative scrutiny.
	That is a practical view that the Home Secretary has taken of his initial commitment. He also made the point that there had not been an opportunity for a complete cycle of control orders to be reviewed and that legal challenges brought by those who have been the subject of those control orders have yet to be completed. I agree that it would be premature, in those circumstances, to bring forward legislation in advance of that. It is right, too, that we consider the importance of the review of the Terrorism Act 2000 by the noble Lord, Lord Carlile, and his conducting of a review of the legal definition of terrorism. We think that that is probably a better, more coherent and cohesive way of looking at the subject, and it will provide Parliament with the opportunity in the fullness of time to have another look and to interrogate the issues.
	Much of the comment made by noble Lords in this debate focused on the report by the Joint Committee on Human Rights. We acknowledge that report as being important and will take careful note of what it has said. Noble Lords have drawn attention to particular points in that report. The noble Lord, Lord Kingsland, in particular, drew attention to Paragraph 38 and the issue of whether the non-derogating control orders were being operated in practice in a way that amounted to a deprivation of liberty and therefore required a derogation from Article 5(1) of the European Convention on Human Rights. We think that the existing control orders, with the more restrictive obligations referred to in the report of the noble Lord, Lord Carlile, were made with the permission of the court. The court did not consider that the orders amounted to derogating control orders, so we are not in agreement with that particular observation from the JCHR.
	We also take issue with the other assertion made in the report on whether the procedural protections are compatible with Article 5(4)—the right of access to a court to determine the lawfulness of detention and the right of a fair trial in determination of a criminal charge and a fair hearing in the determination of civil rights obligations under Article 6(1) of the European Convention on Human Rights and with the common-law right to a fair trial and hearing. We do not accept that control order proceedings amount to a criminal charge. They are civil proceedings with civil procedure rules, and those have been debated in both Houses of Parliament. We think that there is appropriate judicial oversight, provided for in the legislation. There is an automatic judicial review of the Home Secretary's decision. The review will be a full hearing before the High Court or a Court of Session. There are separate rules of court set out in the civil procedures that allow the court to hear both open and closed material. Control orders also have a maximum duration of 12 months. They can then be renewed by the Secretary of State, but this provides for a separate right of appeal. If a control order obligation is modified without the consent of the controlled person, that also gives rise to a right of appeal, and any individual may also apply to the court for an order to be revoked or an obligation to be modified where there is a change of circumstances.
	The noble Lord, Lord Kingsland, made particular reference to the committee's overall conclusions. We do not accept that any of the control orders that we have made impose obligations on individuals that amount to a deprivation of liberty. Therefore, we do not accept the point that they are derogating control orders, nor that a derogation is required. We have not sought to make a derogating control order, but were we to do so, derogation would have to be approved by both Houses of Parliament. Therefore we cannot accept their final conclusion in that regard.
	I heard what the noble Lord, Lord Kingsland said about that. He cited the report of the noble Lord, Lord Carlile of Berriew, at paragraph 53. We certainly accept the seriousness of that observation but, in conclusion, it must be said that, although the noble Lord, Lord Carlile of Berriew, says that they fall not far short of house arrest, they do not, in the end, amount to house arrest. It is certainly true that they place rigorous conditions on the controlee in those circumstances.
	It is also worth dwelling on the report of the noble Lord, Lord Carlile. He makes important points about how the control order regime works. At paragraph 35—I think that is worth reading this into the record—he states:
	"As part of my function as independent reviewer, I task myself to replicate exactly the position of the Home Secretary at the initiation of a control order. I call for and am given access to the same files as were placed before the Secretary of State when he was asked to determine whether a control order should be made. These files include detailed summaries of evidence and intelligence material, as well as the draft Order and obligations. The summaries describe not only the activities alleged against the individual and the sources of information but also the context of those activities in a wider and very complex terrorism picture".
	At paragraph 38, to which reference has also been made, he states:
	"I would have reached the same decision as the Secretary of State in each case in which a control order has been made. He asks questions and certainly does not act as a mere cipher when the papers are placed before him. The process is rigorous and structured in appropriate way, so that the decisions are very definitely those of the Home Secretary, not his officials".
	I think that the noble Lord, Lord Carlile of Berriew, is saying that the process is very rigorous. It is a process that has been taken very seriously by the Home Secretary. Yes, if you like, there is a deprivation of some liberties; that much is clear from reading the report and the way in which the draft control order—referred to as a pro forma—is set out. But that process is gone through with great seriousness because it needs to be and because the potential threat that may arise from that person being entirely at liberty is real and current, as the noble Lord, Lord Carlile, states in parts of his report.
	Other points were raised during the debate that I felt that I should respond to. The noble and learned Lord, Lord Lloyd of Berwick, asked why we were not bringing forward a short Bill to renew the 2005 Act. The noble Lord, Lord Carlile, made no recommendations regarding the operation of the control order system that require primary legislation. If the sole purpose of such a Bill was to renew the Act, today's order, which your Lordships are free to vote against, serves the same purpose.
	The noble and learned Lord, Lord Lloyd of Berwick, asked me a short question: why the Home Secretary's Statement on the important issue of why we could not have full consideration of the Bill was not repeated in your Lordships' House. Simply, that was because the opposition parties did not believe that it was essential for the Statement to be repeated. Statements are repeated in your Lordships' House essentially on request.
	The noble Baroness, Lady Stern, referred to the European Committee on the Prevention of Torture and recommendations that it may make. We understand that the ECPT will report in March of this year, but it has made no immediate recommendations to us, following its visit to us last July. I understand that, in November, it made one recommendation about an individual who is the subject of a control order, to which the Government are, of course, giving careful consideration, but it made no general observations to the way in which the control order regime worked.
	I think that I have covered most of the points raised. The noble Lord, Lord Kingsland, asked me about prosecutions. I entirely agree with the noble Lord that it would be greatly preferable if we could bring a prosecution in every case. The noble Lord, Lord Carlile of Berriew, made that point in his report, and we do not fundamentally disagree with it. But we must accept that there are circumstances—your Lordships' House has accepted the point in the past—in which it would not be appropriate to bring cases. The noble Lord, Lord Kingsland, made the point, as he has done before, as has the noble and learned Lord, Lord Lloyd of Berwick, that it was possible that more cases would be brought before the courts if telephone interceptions and material derived from them were part of evidence that could be fashioned into bringing a case. The noble Lord, Lord Carlile of Berriew, says this:
	"Although the availability of such evidence would be rare and possibly of limited use, I remain of my previously expressed view that it should be possible for it to be used and the Law should be amended to a limited extent to achieve that".
	As the noble Lord, Lord Kingsland, said, the Home Secretary is considering that, and with some seriousness.
	We accepted the other point made by the noble Lord, Lord Carlile of Berriew, about prosecutions. I referred to it in my opening remarks; perhaps the noble Lord missed it. On the police providing more information about why prosecutions were not possible, I said that we accepted and acknowledged the soundness of the principle, and we will examine carefully with stakeholders how that might work in practice. So the court may be provided with that level of explanation.
	I am grateful for the seriousness with which your Lordships' House has approached the matter. Clearly, the issue will need to be kept under very careful review. There are opportunities for both Houses of Parliament to do so. I am grateful for the debate and the quality of the contributions. Our overall role as government must first and foremost be to protect the general public. Whatever one thinks about control orders, how they operate and the difficulties with them, we believe that they are helping and making a major contribution to public protection. They do so while maintaining safeguards to protect the rights of individuals.
	With that very much in mind—we clearly respect individuals' rights, but we view the terrorist threat very seriously—I commend the order to your Lordships' House.

Lord Evans of Temple Guiting: My Lords, I shall speak first to Amendment No. 4 before turning to Amendment No. 5, both standing in the names of the noble Lords, Lord Livsey of Talgarth, Lord Roberts of Llandudno and Lord Thomas of Gresford.
	Amendment No. 4 seeks to enable the Assembly to make provision in regulations for the examination of cases by the commissioner in connection with his functions and powers under Clauses 2, 3, 5 and 8 of the Bill. The Bill as drafted enables the commissioner to examine an individual case in connection with his functions. This reference to "functions" includes all of the commissioner's powers and duties except that of making representation to the Assembly on non-devolved matters.
	We will not agree on this issue. It comes up time and time again, under almost any amendment. We have the new Wales Bill coming shortly and I am afraid that we will have to wait until then to look at the question of further devolution of powers to Wales. The amendment does not appear to add anything to the Bill. In fact, it might serve to narrow the commissioner's remit by preventing him examining a case in connection with any further supplementary powers that may be conferred on him by virtue of Clause 13.
	Amendment No. 5 seeks to give the commissioner a locus in non-devolved matters by enabling him or her to examine the case of an older person in Wales in connection with his power to make representation to the Assembly on non-devolved matters. We discussed this on Report and in Committee. As I explained on both those occasions, the Government's position is that it would be a breach of the constitutional settlement to allow the commissioner to exercise his powers directly in relation to non-devolved matters.
	It is important to recognise that in examining the circumstances of a particular case the commissioner will be able to require persons to provide him with information, explanations or assistance. He will also be able to require the attendance of witnesses in connection with such an examination and to examine those witnesses. If the noble Lords' amendments were to be accepted, the consequence would be that UK-wide public bodies and UK government departments with responsibility for non-devolved matters could be required to provide the commissioner with information or assistance. Individuals working in these organisations could also be required by the commissioner to attend as witnesses.
	Non-devolved functions are the responsibility of the UK Government and not of the Assembly. I hope that this is the last time that I will have to make that statement, which I think we are all fed up with. To enable a commissioner established by the Assembly and for Wales to exercise such powers in relation to non-devolved matters would simply not be acceptable. I ask the noble Lords to withdraw their two amendments.

Lord Roberts of Llandudno: My Lords, we sometimes look at something and say, "What this could have been". Then we say, "But it has fallen far short of what we would like it to be". But possibly half a loaf is better than no bread. This might just be the beginning of an evolution of thinking in this direction.
	I draw your Lordships' attention to Amendment No. 8. In all our contributions from the Liberal Democrat Benches we are concerned that no older person in any circumstances whatever will feel that they are beyond the reach of a commissioner and of help. That is all that we want. Cross-border matters and non-devolved matters all affect older people. As my noble friend Lord Thomas of Gresford said, most problems that really affect people are connected with pensions and benefits. Those, of course, are non-devolved matters and, being so, the commissioner is unable to tackle them in any way at all. However, the citizen's advice bureau tells us that those are the matters which most concern people.
	As the Minister said, the commissioner is appointed by the National Assembly. We have to accept the limitations of that office. As the Minister also said, we are to have a Government of Wales Bill. When that goes through the House we may have to revisit the powers of the Commissioner for Older People in Wales.
	The amendment to which I draw noble Lords' attention would ensure that no older person in a hospital, a care home, a residential home or even in his own home was beyond the reach of the commissioner's help. That is why we seek to enable the commissioner to interview a person in the latter's own home at the request of that individual.
	The elder abuse movement states that most instances of ill treatment of older people occur in their own homes. The Community and District Nursing Association conducted an elder abuse survey. Some 276 responses were received. The survey states:
	"The results have shown that 40% [of the responses] have witnessed or have been aware of elder abuse during 2004",
	with 82 per cent of those instances occurring in the patient's own home. The survey continues:
	"In 77% of cases referred to they are carried out by a family member of the victim".
	That is a very real worry. A person's own home should, at his or her invitation, be open to a commissioner to enable the latter to help the person. I am told that an opinion poll to be released in the next few weeks will show that 19 per cent of the general public are personally aware of elder abuse.
	We could press the amendments but, following extensive discussions, I believe that Her Majesty's Government are aware of the situation and that they are convinced that this Bill and existing legislation are sufficient to protect older people. The Minister knows that I am not totally convinced by that argument. However, the government amendments that are tabled today go a considerable way to meet our concerns, for which I am grateful.
	I may not speak again tonight as that enables us to cover the ground quickly. Therefore, I take this opportunity to thank the noble Lord, Lord Evans, and his colleagues for being open to discussion and for having responded to our concerns to a certain extent. I also thank the Bill team, who have been trying to meet our criticisms and anxieties. Having spoken to the amendments, I will beg leave to withdraw them at the appropriate time. I welcome government Amendments Nos. 11 and 16. I beg to move.

Lord Evans of Temple Guiting: My Lords, before I speak to Amendment No. 7, I say to the noble Lord, Lord Thomas of Gresford, that I have absolutely no argument with him. I have sympathy for his longstanding view that more powers ought to be passed to the Welsh Assembly. At every possible juncture, I have simply been saying that this Bill is not the vehicle in which to do that. The vehicle will be the Government of Wales Bill, which is coming later. If I have shown myself to be irritated with the noble Lord, Lord Thomas of Gresford, I apologise. There was no intention to do so; there was simply a certain frustration that we were going around in circles on this matter.
	The effect of this amendment would be to extend the purposes for which the commissioner may enter premises and interview an older person accommodated or cared for there by giving him a power to enter and interview for the purposes of his general functions under Clause 2. The purpose of the power to enter and interview is to facilitate the commissioner's specific powers to review arrangements and the discharge of functions. That may involve the need to obtain information from older people in relation to whom functions have been discharged or arrangements made. For example, an older person receiving domiciliary care from a local authority or regulated services from the provider of such services might be interviewed by the commissioner.
	In contrast, the commissioner's powers under Clause 2 are very general and are primarily concerned with more strategic matters of public policy. In exercising those general functions, the commissioner will be relying primarily on his own knowledge and expertise and on the expertise and experience of relevant stakeholder groups and professionals. The Government's view, therefore, is that to give the commissioner such a broad power would be both unnecessary and disproportionate. It would also be setting a precedent among other commissioners and ombudsmen, none of whom has such a power. I respectfully ask the noble Lord to withdraw his amendment.

Lord Evans of Temple Guiting: My Lords, I shall speak first to government Amendments Nos. 9 and 11 before turning to Amendment No. 10 and government Amendments Nos. 15 and 16. On Report, the noble Lord, Lord Roberts of Llandudno, expressed his firm view that the Bill should ensure that there is the opportunity for an older person to be interviewed by the commissioner in the presence of an independent advocate. We agree that if an older person wants another person to be present when he or she is being interviewed by the commissioner, it should be a requirement that the interview must be conducted in the presence of that other person. Therefore, I have tabled government Amendments Nos. 9 and 11 to make that explicit in the Bill.
	Government Amendment No. 9 is a drafting amendment that simply removes the term "in private" from Clause 12(1)(b). That enables the first element of government Amendment No. 11 to provide that the commissioner must, if an older person so requires, interview him or her in the presence of another person of their choosing. That could include an independent advocate, although it would not be limited to such advocates alone. In circumstances where no such request is made by the older person in question, the second element of Amendment No. 11 requires that such an interview can take place in the presence of another person only to the extent that the commissioner and the older person have agreed that others may be present. I hope noble Lords will accept that this is designed to be a thoughtful response to the issues underlying their previous remarks and that Amendment No. 10 is therefore unnecessary.
	Government Amendments Nos. 15 and 16 have been tabled to ensure that where an older person who has agreed to be interviewed by the commissioner wishes to be interviewed in the presence of another person, that person must be present.
	Clause 13 enables the Assembly to make regulations that confer on the commissioner further supplementary functions for any purpose connected with his existing functions. Subsection (3) of that clause provides that such regulations may, for the purposes of any such supplementary functions, confer power on the commissioner to interview an older person.
	Government Amendments Nos. 15 and 16 ensure that any such power to interview an older person will mirror that in Clause 12. Thus the commissioner must, if an older person so requires, interview him or her in the presence of another person or, where no such request is made, in the presence of others only to the extent that the commissioner and the older person are content for others to be present. I beg to move.

On Question, amendment agreed to.
	[Amendment No. 10 not moved.]

Lord Evans of Temple Guiting: My Lords, at Report stage, my noble friends Lord Rowlands and Lord Prys-Davies, supported by the noble Lords, Lord Thomas of Gresford and Lord Roberts of Llandudno, made some extremely interesting points about the requirement in the Bill for the commissioner to establish a complaints procedure and consult with the Assembly on it. My noble friends wish to see a provision made not only for the commissioner to consult the Assembly about his complaints procedure, but also to require him to obtain the Assembly's approval of it. We have reflected carefully on the views expressed at Report stage. Consequently, I have tabled government Amendment No. 18 which addresses the matter. By casting the Assembly in the role of final arbiter of the commissioner's complaints procedure, instead of the commissioner, the amendment will ensure that the procedure is sufficiently rigorous and impartial. I beg to move.

Lord Roberts of Conwy: My Lords, in moving this amendment I shall speak also to Amendment No. 20.
	There was a time when the detailed requirements in connection with appointments, such as that for the Commissioner for Older People, would be spelt out in primary legislation. That was the case with the Children's Commissioner; the terms and duration of the appointment were on the face of the Bill. Now, we are presented with a brief clause stating that there is to be a Commissioner for Older People, and a schedule which makes further provision. Paragraph 2 of the schedule provides that regulations "may make provision"—note the word "may"—as to the appointment, including any conditions, and as to the term of tenure, its cessation and the removal or suspension of the office holder.
	My first amendment deals with the permissive aspect of these regulations. Surely they must—not "may"—be made. How else, other than by secondary legislation, can the appointment be properly made? I note that paragraph 3 of the schedule states that the Assembly "must" do various things—other paragraphs also use the word "must"—such as pay the commissioner remuneration and allowances. Why is that a "must" and the making of regulations establishing the post a "may"? There must be a firm commitment to secondary legislation, or the rest becomes a nonsense.
	On Amendment No. 20, I think the Minister takes the view that a possible reappointment would be dealt with by the regulations providing for the appointment in the first place. I am not at all happy that we are leaving so much that could be put on the face of the Bill to subsequent secondary legislation. It is a time-consuming procedure, which serves no useful purpose other than to give the Assembly the trappings and semblance of legislative power. Alas, we shall see more of this so-called framework legislation when we come to the new Government of Wales Bill. We have already had a glimpse of it this evening with the NHS Redress Bill. I beg to move.

Lord Evans of Temple Guiting: My Lords, the intention of Amendment No. 19, which stands in the names of the noble Lords, Lord Roberts of Conwy and Lord Luke, appears to be to ensure that the Assembly makes regulations that provide for the appointment and term of office of the commissioner. The Government do not believe that such an amendment is necessary. The Assembly is committed to establishing the office of the commissioner, and Clause 1 of the Bill makes this intention clear. Noble Lords may also be reassured to know that the current wording in the schedule is identical to that found in the Care Standards Act 2000, pursuant to which the Children's Commissioner was appointed.
	Amendment No. 20 is the same in its intent as other amendments on this matter that were fully debated both in Committee and on Report. It seeks to make explicit provisions for regulations to deal with the reappointment of a commissioner, as well as for the initial appointment. I reassure the noble Lord that the term "appointment" most definitely encompasses reappointment. The Assembly will be able to make provision about this matter in regulations, and it has signalled its commitment to do so in its statement of policy intentions. Indeed, based on the views expressed in public consultation on the matter, the Assembly plans to provide for a four-year term, renewable once.
	During our consideration of a similar amendment on Report, the noble Lord, Lord Roberts of Conwy, said that his primary purpose in tabling the amendment was to draw attention to the differences in the provisions for reappointment of the Commissioner for Older People and the Children's Commissioner for Wales; he has retuned to that point this evening. However, the appointment and reappointment provision in this Bill is identical to that used in the Children's Commissioner for Wales legislation. The relevant paragraph states that:
	"Regulations may make provision . . . as to the appointment of the Commissioner (including any conditions to be fulfilled for appointment)".
	That is the exact form of words used in Schedule 1(2). I believe that the noble Lord, Lord Roberts of Conwy, may have been thinking of the UK Children's Commissioner, created by the Children Act 2004. The Act makes express provision for reappointment. However, in legislating for a Commissioner for Older People in Wales we have taken the decision that it is appropriate to follow the model for the Welsh Children's Commissioner and provide for the Assembly to determine the matter in regulations. That does not represent a change in legislative approach but a continuation of the approach taken in the Children's Commissioner for Wales legislation. I hope that with that explanation the noble Lord will feel able to withdraw his amendment.

Lord Evans of Temple Guiting: My Lords, before I beg to move that the Bill do now pass, I give my grateful thanks to those Peers who have taken part in the debate over the past few months; in particular, the noble Lord, Lord Roberts of Conwy, the noble Lord, Lord Roberts of Llandudno, the noble Lord, Lord Livsey, and the noble Lord, Lord Thomas of Gresford. It has been for me an extraordinarily interesting experience. I am grateful to all Peers for the way and the spirit in which they have debated this interesting Bill. On behalf of all Peers I must thank the Box, the officials from the Wales Office and those from the Assembly, who have done the most wonderful job over the months. Our grateful thanks to all there. I beg to move that the Bill do now pass.
	Moved, That the Bill do now pass.—(Lord Evans of Temple Guiting.)